Professor Erwin Chemerinsky has succinctly delineated the options available to the Court in McCutcheon v. Federal Election Commission. Erwin Chemerinsky, Symposium: The distinction between contribution limits and expenditure limits, SCOTUSblog (Aug. 12, 2013, 2:42 PM), http://www.scotusblog.com/2013/08/symposium-the-distinction-between-contribution-limits-and-expenditure-limits/. He then notes with regret one voice missing from the current Court’s jurisprudential chorus: the voice for reversing Buckley v. Valeo’s special protections for “expenditures,” once supplied by John Paul Stevens. Justice Stevens famously called in Nixon v. Shrink Missouri PAC, 528 U.S. 377 (2000) for acceptance of the "simple point” that “money is property; it is not speech.” Id. at 398.

What to do about super PACs? Joel Gora, no admirer of campaign finance restrictions, argues that we should defend them. Joel Gora, Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist? Brooklyn Law School, Legal Studies Paper No. 346 (2013). If they have come to typify the problems with money in politics, Gora contends, it is because we fail to appreciate their contribution to free speech, or their origins in long-standing independent expenditure jurisprudence. He adds: they didn't have the impact on the outcome that their critics widely feared. In other words, super PACs are good things, not bad things.

Don McGahn has made his mark on the Federal Election Commission, and the recent Boston Globe account tells the story in familiar terms: he was dedicated to the evisceration of the campaign finance laws, he could count on the support of his Republican colleagues, and he did not go about this business with a soft touch. Commissioners now decline to reach across the aisle except to swat at one other, leaving two senior members to argue over the question of which of the them refused to answer the other's phone calls. The agency’s operations are defined by dysfunction, its atmosphere by disharmony. As the Globe dates these developments, the year 2008, when McGahn came to the FEC, is the turning point.

To accept that this is an unattractive portrait of the FEC—that this is not a model of constructive regulatory exertion even on difficult issues—is not to say that the picture is complete. The FEC has found the going rough for years, as the Globe noted: "stalled from the start," in the words of an early Common Cause critique. If what was once a stall has developed into flaming breakdown, the explanation must rest on more than the obduracy since 2008 of Don McGahn and his colleagues. The Globe makes a light pass on other factors but they remain in the background, diminished and incomplete.

When Senator McConnell recently and aggressively needled Norm Ornstein at an AEI event, the coverage first settled on the jibe, and then, a little later, on the Senator’s denial that his position skeptical of campaign finance disclosure had changed for 25 years. All interesting or entertaining enough, but the Senator said more about his objections to campaign finance regulation—all government involvement in campaign finance, including disclosure and public financing—and it is well worth close attention.

Campaign finance jurisprudence is intensely concerned with free speech rights, less and decreasingly with associational rights, and not at all with a more comprehensive conception of the requirements for conducting political action—“doing politics.” Why this is so is worth exploring. Something is missing here, and the gap is consequential.